QADIR BHAT Vs. QADIR MIR

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge, Anantnag, recommending that the order of attachment passed by the Executive Magistrate, Tehsildar, Pulwama be set aside in as much as the said order is improper and illegal.

(2.) BRIEFLY speaking the facts of the case are that in proceedings under section 145 Cr. P. C. initiated at the instance of the local police. The Tehsildar Executive Magistrate, Pulwama, initiated proceedings under section 145 Cr. P. C. and on his being, satisfied that -there was a dispute with regard to the land in dispute between Qadir Bhat on the one hand and Hassan Thokar on the other, which dispute was likely to cause breach of peace on the spot, he draw up a preliminary order in accordance with Section 145 (1) Cr. P. C. and directed the parties to file their written Statements as respects the fact of the actual possession. This order was made on 1 -6 -1978 and the application was posted for further proceedings on 7 -6 -1978. It appears that one day before the hearing of the application, i. e. on 6th of June, 1978, one Qadir Mir, who was the informant before the police made an application under section 145 (4) Cr. P. C. to the Executive Magistrate praying for the interim attachment of the subject matter of dispute as according to the applicant, there was imminent danger of peace which necessitated an action to be taken in terms of the said Sub -clause of section 145 Cr. P. C. The Executive Magistrate passed the order of attachment which is the subject matter of revision before this court

(3.) THE learned Sessions Judge has in his order of reference observed that the order of attachment was uncalled for in this case. The Magistrate should have waited for at least one day when the case was to come up before him. He should have consulted the record and should not have left the matter to be dealt with by his clerk. Conceding the power to the magistrate to attach the property in emergent circumstances, he has however, canvassed that there must be reasonable and cogent grounds which would satisfy the magistrate that the case is one of emergency and which requires an order to be passed by him, for the attachment of the subject matter of dispute. Without any material to support his -subjective .satisfaction the magistrate has in the present case passed the impugned order in a mechanical way.